SHARE PURCHASE AGREEMENT
(Redacted Confidential Treatment Requested)
This Share Purchase Agreement (the "Agreement") is entered into as of
this __ day of July, 1999, by and among EchoStar DBS Corporation, a Colorado
corporation ("EchoStar"), DBS Industries, Inc., a Delaware corporation ("DBSI"),
E-Sat, Inc., a Colorado corporation ("E-Sat") and Newstar Limited, a Bermuda
corporation ("Newstar") (hereinafter individually referred to as a "Party" or
collectively referred to as the "Parties"; DBSI, E-Sat and Newstar, together
with any of their Affiliates, are hereinafter sometimes referred to as the "DBSI
Parties").
WITNESSETH:
WHEREAS, E-Sat is presently owned eighty percent (80%) by EchoStar and
twenty percent (20%) by DBSI; and
WHEREAS, the purpose of this Agreement is for DBSI to purchase shares
of E-Sat common stock owned by EchoStar sufficient in number such that after the
purchase DBSI will own eighty and one tenth percent (80.1%) of the equity
ownership of E-Sat and EchoStar will own nineteen and nine tenths percent
(19.9%) of the equity ownership of E-Sat, conditioned upon receiving all
required government approvals to transfer control of such shares from EchoStar
to DBSI, including, but not limited to, any approval of the Federal
Communications Commission ("FCC") necessary for the transfer of such shares, and
subject to the terms and conditions set forth herein; and
WHEREAS, provided that DBSI and EchoStar enter into this Agreement,
DBSI is willing to construct, launch and operate the satellites authorized to be
constructed by an order from the FCC issued to E-Sat for the construction,
launch and operation of non-voice, non-geostationary "Xxxxxx XXX" mobile
satellite system, a copy of which is attached hereto and made a part hereof as
Exhibit "A" (together with any renewals, extensions and similar rights, and as
farther defined in Section 2.4.4 below, the "FCC License").
NOW THEREFORE, in consideration of the mutual covenants set forth
herein, and for other legal and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the Parties hereby agree as
follows:
1. PURCHASE AND SALE OF THE E-SAT SHARES; THE CLOSING;
CONSTRUCTION OF SATELLITES.
1.1. PURCHASE AND SALE OF THE SHARES. Effective on the date of this Agreement,
and subject to the conditions set forth in Sections 2 and 3 below, EchoStar
agrees to sell and DBSI agrees to purchase shares of E-Sat common stock owned by
EchoStar sufficient in number such that after the transfer, EchoStar shall own
nineteen and nine tenths percent (19.9%) of the equity ownership of E-Sat and
DBSI shall own eighty and
one tenth percent (80.1%) of the equity ownership of E-Sat after the transaction
(the "Shares").
1.2. THE CLOSING. The transactions contemplated by this
Agreement shall close on the third business day after the Parties have received
all required governmental approvals to transfer control of the Shares from
EchoStar to DBSI contemplated by Section 3 of this Agreement. The Closing shall
take place at the offices of Xxxxxx Eng Linn & Xxxxxxxx, 000 Xxxxxxx Xxxx, Xxxxx
0000, Xxxxxxxxxx, Xxxxxxxxxx, 00000, at 10:00 am, or at such other time and
place as mutually agreed upon by the Parties.
1.3 CONSTRUCTION OF SATELLITES. DBSI hereby covenants and
agrees to construct, launch and operate the satellites authorized to be
constructed by the FCC License, subject to DBSI receiving financing in an amount
sufficient to construct, launch and operate the satellites on terms and
conditions acceptable to DBSI.
2. CASH PAYMENT AND ASSIGNMENT, TRANSFER AND CONVEYANCE OF CERTAIN
RIGHTS.
2.1 Payments. Upon satisfaction of the conditions set forth in
Section 3 of this Agreement, DBSI shall pay to EchoStar [redacted] consideration
for the purchase of the Shares.. As additional consideration for the right to
purchase the Shares, the DBSI Parties shall fulfill the obligations, and provide
to EchoStar the additional rights, as provided in this Agreement.
2.2 Assignment, Transfer and Conveyance of Certain Rights.
Subject to FCC or any other governmental approvals required by law for purchase
of the E-Sat shares owned by EchoStar, contemporaneous with sale of the Shares
to DBSI the DBSI Parties, without need for any further action, irrevocably
assign, transfer and convey to EchoStar all right, title and interest (including
but not limited to sole and exclusive rights), at no cost to EchoStar, to twenty
percent (20%) of the total Capacity of the E- Sat System worldwide, including
but not limited to all satellites, and any and all revenues, proceeds, income,
assets or value relating directly or indirectly thereto (collectively, the
"EchoStar Capacity" - for the avoidance of doubt, the term "EchoStar Capacity"
is not intended by the Parties to include ownership of the actual satellites).
This assignment, transfer and conveyance includes any and all renewals and
extensions of that authority, and shall extend to any and all replacement or
additional XXX satellites utilized by the DBSI Parties worldwide, regardless of
the in-service date of such satellites. The DBSI Parties will provide, without
charge, all cooperation reasonably requested (not unduly burdensome to the DBSI
Parties) to enable EchoStar to exploit the EchoStar Capacity. The right to the
EchoStar Capacity shall continue for as long as the FCC License, the E-Sat
System or any Capacity exists, and may be utilized at any time and from time to
time by EchoStar during such term.
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EchoStar covenants and agrees that except as provided below, it will not
knowingly permit third parties to utilize any portion of the EchoStar Capacity
for the purpose of reading electrical meters in the United States, and shall
condition any sale of the EchoStar Capacity to others on their agreement to be
bound by this covenant. Notwithstanding the above, EchoStar and its Affiliates
shall not be prohibited from permitting third parries to utilize any or all of
the EchoStar Capacity for the purpose of reading electrical meters in the United
States if the third party at the time of reading has a relationship with
EchoStar or its Affiliates separate from the reading of electrical meters in the
United States (for example and not by limitation, if the third party is an agent
or retailer for DISH Network, or bundles its services with DISH Network
programming).using any or all of the EchoStar Capacity. Further, the limitation
on use above shall not be construed to prohibit EchoStar and its Affiliates from
using all or any portion of the EchoStar Capacity: 1) for the purpose of reading
electrical meters outside the United States; or 2) for the reading by EchoStar
or its Affiliates (as opposed to third parties) of electrical meters in the
United States.
2.3 Right To Utilize Messaging and Other Infrastructure.
Except as expressly set forth to the contrary below, the DBSI Parties shall be
solely responsible for the payment of any and all costs arising out of or
relating to the development and operation of the FCC License and E-Sat System,
including but not limited to the remaining pre-operational administrative and
development costs. At all times during which EchoStar desires to utilize all or
part of the EchoStar Capacity (directly or indirectly), the DBSI Parties agree
that EchoStar shall be entitled to use the infrastructure developed by the DBSI
Parties for the purpose of uplinking data to, and/or downlinking data from, the
E-Sat System; provided, that EchoStar agrees to pay the DBSI Parties direct
incremental costs, and only their direct incremental costs, associated with
EchoStar's use of the necessary infrastructure for such purpose(s). Direct
incremental costs shall, for example and not by way of limitation, not include
costs to design, manufacture or launch satellites or replacements thereof or to
purchase ground equipment required unless such ground equipment is used
exclusively to support EchoStar. Notwithstanding the foregoing, EchoStar shall
have the express right to develop and implement its own infrastructure that will
allow EchoStar, among other things, to uplink data to, and/or downlink data
from, the E-SAT System so long as such infrastructure does not unreasonably
interfere with the existing infrastructure of the DBSI Parties. The DBSI Parties
will offer reasonable assistance to EchoStar, without charge, in the development
and implementation of such infrastructure on the E-Sat System. EchoStar is
further hereby granted a royalty free license to utilize any intellectual
property that the DBSI Parties own or license in connection with the E-Sat
System, as EchoStar may reasonably request in order to exploit the EchoStar
Capacity. EchoStar is hereby further entitled, at EchoStar's option, to purchase
from the DBSI Parties, any and all transmission and any other equipment or
components reasonably needed, or as EchoStar may reasonably request, in order to
exploit the EchoStar Capacity, provided that EchoStar shall not be entitled to
obtain any equipment or
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components that the DBSI Parties can not reasonably obtain. The price for the
purchase of such equipment and components shall be the same price as the DBSI
Parties pay to any others for such equipment and components, without xxxx up. In
the event that the DBSI Parties produce any equipment or components, then the
price to EchoStar shall be equal to the DBSI Parties hard cost of production
(excluding for example but not by limitation, overhead, engineering and general
and administrative expenses).
2.4 Definitions. In addition to any other defined terms
in this Agreement and except as otherwise expressly provided for in this
Agreement, the following terms shall have the following meanings:
2.4.1 "Affiliate" shall mean, with respect to a particular person or
entity, any person or entity directly or indirectly controlling, controlled by
or under common control with such person or entity.
2.4.2 "Capacity" shall mean the usable communications capacity of the
E-Sat System, which, at the sole cation of EchoStar as it may elect from time to
time, shall be deemed the total usable communications capacity of the E-Sat
System worldwide at any given point in time, or at all points in time combined,
and shall be calculated taking into account coordination both with other U.S.
"Xxxxxx XXX" licensees and with users of the spectrum outside the U.S. The
usable communications capacity of the E-Sat System will be computed based on the
data throughput available in each operational beam. The data throughput will be
computed taking into consideration U.S. and international regulations relating
to duty cycle as well as protection of other communications systems. In cases of
dispute regarding calculation of the usable communications capacity of the E-Sat
System, the Parties agree to utilize an external consulting engineer or
engineers with expertise in the field of satellite communications to assess and
quanta the usable communications capacity of the E-Sat System.
2.4.3 "E-Sat System" shall mean the FCC License, and the non-voice,
nongeostationary "Xxxxxx XXX" mobile satellite system constructed, launched and
operated in connection with the FCC License together with any Xxxxxx XXX system
rights obtained by the DBSI Parties from other sources.
2.4.4 "FCC License" shall mean the authorization issued to E-Sat by the
FCC on March 31, 1998 for the construction, launch and operation of a non-voice,
nongeostationary "Xxxxxx XXX" mobile satellite system (a copy of which is
attached hereto as Exhibit A), and as further defined above.
3. CONDITIONS TO THE PURCHASE AND SALE OF THE E-SAT SHARES.
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DBSI's obligation to purchase the Shares and EchoStar's obligation to sell the
Shares provided for in Section 1 of this Agreement shall be conditioned upon
receiving all required governmental approvals to transfer control of the Shares
from EchoStar to DBSI, including, but not limited to, any approval of the FCC
necessary for the transfer of the Shares. By Monday, August 8, 1999, DBSI will
file an application with the FCC, at DBSI's sole cost and expense, for transfer
of control of the FCC License to DBSI. As soon as reasonably practicable after
the date first written above, DBSI will file applications for, and otherwise
diligently proceed towards securing, the FCC and any other governmental
approvals required by law. EchoStar shall take steps in cooperation with DBSI,
as DBSI may reasonably request and at DBSI'S sole cost and expense, in
connection with the processing of such applications.
In the event that, during the pendency of DBSI's application for transfer of
control of the FCC License, additional authorizations are required for ground
control stations in the United States, or for other facilities in the United
States, E-SAT shall submit, be a signatory to and prosecute the requisite
license applications and related filings in each instance in cooperation with,
and at the sole cost and expense of, the DBSI Parties and as the DBSI Parties
reasonably requests. The DBSI Parties agree to provide E-SAT with all assistance
necessary for E-SAT to preserve the FCC License and to comply with the FCC's
rules and regulations applicable to the E-SAT System (including without
limitation assisting E-SAT to obtain any FCC approvals necessary for E-SAT to
develop and operate the E-Sat System) The DBSI Parties agree to pay all costs of
preparing and prosecuting any licenses, applications, renewals, landing rights
applications and other regulatory approvals and of any other nature whatsoever
associated with the E-SAT System, including but not limited to all attorney and
engineering fees, all costs of applications and renewals, and all matters
described in this Section 3.
In the event that the FCC determines not to approve the transfer of control, or
any other required approval is withheld, EchoStar shall have the right to
develop and operate the E-Sat System itself, subject to receipt of any required
approvals from the FCC.
4. ADDITIONAL RIGHTS, OBLIGATIONS AND COVENANTS.
4.1. EchoStar's Right of First Refusal. Subsequent to the
transfer of the Shares to DBSI and for a period of three (3) years, commencing
on the date first set forth above, DBSI shall not sell, transfer, assign, pledge
or otherwise dispose of (a "Transfer") any of its E-Sat common stock except
pursuant to EchoStar's right of first refusal described in this Section 4.1.
DBSI will not consummate any Transfer until five (5) days after delivery to
EchoStar of the Offer Notice, as defined in this Section 4.1. At least ten (10)
days prior to DBSI making any Transfer of any E-Sat common stock, DBSI will
driver a written notice (the "Offer Notice") to EchoStar. The Offer Notice will
disclose in reasonable detail the proposed amount of E-Sat common stock to be
transferred and the proposed terms and conditions of the Transfer. EchoStar may
elect to purchase all (but not less than all) of the E-Sat common stock
specified in the Offer
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Notice at the price and on the terms specified therein by delivering written
notice of such election (the "Election Notice") to DBSI as soon as practical but
in any event within five (5) days after delivery of the Offer Notice. lf
EchoStar has elected to purchase the E- Sat common stock, the transfer of the
E-Sat common stock will be consummated as soon as practical after the delivery
of the Election Notice, but in any event within ten (10) days after expiration
of such five (5) day election period (the "Election Period"). To the extent
EchoStar has elected not to pursue to purchase all of DBSI'S E-Sat common stock
being offered, DBSI may, within ten (10) days after expiration of the Election
Period, transfer such E-Sat common stock to one or more third parties at a price
no less than the price per share specified in the Offer Notice and on other
terms no more favorable to the transferee than offered to EchoStar in the Offer
Notice.
4.2 DBSI's Right of First Refusal. Subsequent to the transfer
of the Shares to DBSI and for a period of three (3) years, commencing on the
date first set forth above, EchoStar shall not sell, transfer, assign, pledge or
otherwise dispose of (a "Transfer") any of its E-Sat common stock except
pursuant to DBSI's right of first refusal described in this Section 4.2.
EchoStar will not consummate any Transfer until five (5) days after delivery to
DBSI of the Offer Notice, as defined in this Section 4.2. At least ten (10) days
prior to EchoStar making any Transfer of any E-Sat common stock, EchoStar will
deliver a written notice (the "Offer Notice") to DBSI. The Offer Notice will
disclose in reasonable detail the proposed amount of E-Sat common stock to be
transferred and the proposed terms and conditions of the Transfer. DBSI may
elect to purchase all (but not less than all) of the E-Sat common stock
specified in the Offer Notice at the price and on the terms specified therein by
delivering written notice of such election (the "Election Notice") to EchoStar
as soon as practical but in any event within five (5) days after delivery of the
Offer Notice. If DBSI has elected to purchase the E-Sat common stock, the
transfer of the E-Sat common stock will be consummated as soon as practical
after the delivery of the Election Notice, but in any event within ten (10) days
after expiration of such five (5) day election period (the "Election Period").
To the extent DBSI has elected not to pursue to purchase all of the E-Sat common
stock being offered, EchoStar may, within ten (10) days after expiration of the
Election Period, transfer such E-Sat common stock to one or more third parties
at a price no less than the price per share specified in the Offer Notice and on
other terms no more favorable to the transferee than offered to DBSI in the
Offer Notice.
4.3 Board Representation. Subsequent to the transfer of the
Shares, EchoStar shall have the right to designate one (1) representative (the
"Representative") to be elected to the E-Sat Board of Directors (the "Board")
and, upon DBSI's receipt of written notice of EchoStar's designation of a
Representative, the DBSI Parties agree to use their best efforts to cause the
Representative to be elected to the Board. E-Sat's Articles of Incorporation
will be amended to include such right. The form of the amendment to be filed,
and a voting rights agreement between EchoStar and
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DBSI, each of which must be reasonably agreeable to both DBSI and EchoStar,
shall be attached as Exhibits to this Agreement as expeditiously as possible,
and in any event prior to consummation of sale of the Shares. In the event of
any disagreement with respect to appropriate wording, the Parties hereby agree
that the senior corporate law professor at the University of Denver (the
"Professor") shall be jointly retained by the Parties to prepare for the
Exhibits (and ultimately for signing and filing by the Parties) the language the
Professor, in his or her sole judgement, believes best reflects and implements
the intent of the Parties as summarized in this section. The judgement of the
Professor shall irrevocably bind the Parties. The Parties all agree to sign such
documentation as the Professor may request or require fully indemnifying the
Professor for his or her actions. The amendment shall be filed, and the voting
agreement shall be signed, contemporaneous with sale of the Shares from EchoStar
to DBSI. Prior to the designation of the Representative (and at any times that
EchoStar declines to place a Representative on the E-Sat Board of Directors),
EchoStar will be notified of all meetings of the Board and an individual,
selected by EchoStar, will be permitted to attend and observe all such meetings
("Observer Rights"). While exercising Observer Rights, EchoStar will not
disclose or otherwise disseminate to third parties any confidential information
gained as a result of attendance at any meetings or received as a result of
EchoStar's Observer Rights.
4.4 Issuance of Additional E-Sat Equity Securities. Subsequent
to the Transfer of the Shares to DBSI, in the event that E-Sat proposes to issue
any additional securities in the future, the DBSI Parties shall cause E-Sat to
take any and all action (including, but not limited to, issuing additional
shares of equity securities to EchoStar for no consideration) necessary to
maintain EchoStar's: (i) ownership of the total number of outstanding equity
securities of E-Sat (with respect to both voting power and economic benefit);
and (ii) control of the total voting power in E-Sat, in each case, equal to
19.9%. The Parties agree to cause E-Sat to amend its Articles of Incorporation
to reflect this right. . The form of the amendment to be filed, which must be
reasonably agreeable to both DBSI and EchoStar, shall be attached as an Exhibit
to this Agreement as expeditiously as possible, and in any event prior to
consummation of sale of the Shares. In the event of any disagreement with
respect to appropriate wording, the Parties hereby agree that the senior
corporate law professor at the University of Denver (the "Professor") shall be
jointly retained by the Parties to prepare for the Exhibits (and ultimately for
signing and fifing by the Parties) the language the Professor, in his or her
sole judgement, believes best reflects and implements the intent of the Parties
as summarized in this section. The judgement of the Professor shall irrevocably
bind the Parties. The Parties all agree to sign such documentation as the
Professor may request or require fully indemnifying the Professor for his or her
actions. The amendment shall be filed contemporaneous with sale of the Shares
from EchoStar to DBSI.
4.5 Piggyback Registration Rights. Subsequent to the transfer
of the Shares to DBSI, EchoStar shall have a one time right (a piggyback right)
to register
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its E-Sat equity securities if E-Sat determines to register any of its
securities for its own account or the account of others, other than a
registration relating solely to "employee benefit plans," an SEC Rule 145
transaction, or a registration that does not permit secondary sales. DBSI shall
cause E-Sat to give EchoStar written notice of its intention to register equity
securities not less than thirty (30) days prior to the anticipated time of
filing. The form of a formal registration rights agreement, which must be
reasonably agreeable to both DBSI and EchoStar, shall be attached as an Exhibit
to this Agreement as expeditiously as possible, and in any event prior to
consummation of sale of the Shares. In the event of any disagreement with
respect to appropriate wording, the Parties hereby agree that the senior
corporate law professor at the University of Denver (the "Professor") shall be
jointly retained by the Parties to prepare for the Exhibits (and ultimately for
signing and filing by the Parties) the language the Professor, in his or her
sole judgement, believes best reflects and implements the intent of the Parties
as summarized in this section. The judgement of the Professor shall irrevocably
bind the Parties. The Parties all agree to sign such documentation as the
Professor may request or require fully indemnifying the Professor for his or her
actions. The registration rights agreement shall be signed by DBSI, EchoStar and
E-Sat contemporaneous with sale of the Shares from EchoStar to DBSI.
4.6 Amendment to E-Sat Articles of Incorporation. EchoStar and
DBSI agree to cause E-Sat to amend its charter documents (Articles of
Incorporation and Bylaws) to require that greater than 80.1% of the outstanding
shares of E-Sat be required to approve Significant Corporate Actions, as defined
in Annex A attached hereto and incorporated herein by this reference. The form
of the amendments) which must be reasonably agreeable to both DBSI and EchoStar,
shall be attached as an Exhibit to this Agreement as expeditiously as possible,
and in any event prior to consummation of sale of the Shares. In the event of
any disagreement with respect to appropriate wording, the Parties hereby agree
that the senior corporate law professor at the University of Denver (the
"Professor") shall be jointly retained by the Parties to prepare for the
Exhibits (and ultimately for signing and filing by the Parties) the language the
Professor, in his or her sole judgement, believes best reflects and implements
the intent of the Parties as summarized in this section. The judgement of the
Professor shall irrevocably bind the Parties. The Parties all agree to sign such
documentation as the Professor may request or require fully indemnifying the
Professor for his or her actions. The amendments shall be filed and made
effective contemporaneous with sale of the Shares from EchoStar to DBSI.
5. MUTUAL RELEASES.
5.1. Release by DBSI.
(a) Regardless of whether or not the sale of the
Shares is ultimately consummated. The DBSI Parties and their Affiliates, for
themselves, their
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predecessors, successors, insurers, assigns, heirs, executors, administrators,
agents, officers, directors, employees, shareholders, members, attorneys, legal
representatives and Affiliates, hereby absolutely and forever release, forgive,
remise, and discharge
EchoStar and its Affiliates (as defined below, and including without limitation
E-Sat), and their predecessors, successors, insurers, assigns, heirs, executors,
administrators, agents, officers, directors, employees, shareholders, attorneys,
legal representatives and Affiliates, of and from any and all claims, demands,
damages, debts, obligations, liabilities, accounts, costs, expenses, liens,
actions, causes of action, and suits in equity, of any kind or nature
whatsoever, whether now known or unknown, patent or latent, suspected or
unsuspected, which they now have, own or hold, or could with the passage of time
have, own or hold, or at any time heretofore ever had owned or held, based on
any contract, tort, lien, liability, matter, fact, cause, thing, injury, act or
omission whatsoever, whether or not in any way relating or pertaining to the
E-Sat system.
(b) Nothing contained in this Agreement shall be
considered an admission of liability by or against EchoStar or any of its
Affiliates, or any of their predecessors, successors, insurers, assigns, heirs,
executors, administrators, agents, officers, directors, employees, shareholders,
attorneys, legal representatives or Affiliates, any such liability bang
expressly denied.
(c) The DBSI Parties and their Affiliates, for
themselves, their predecessors, successors, insurers, assigns, heirs, executors,
administrators, agents, officers, directors, employees, shareholders, members,
attorneys, legal representatives and Affiliates, hereby represent and warrant
that they have not assigned any portion of any claim being released in this
Section 5.1 to any other person or entity, and that the DBSI Parties and their
Affiliates, and their predecessors, successors, insurers, assigns, heirs,
executors, administrators, agents, officers, directors, employees, shareholders,
members, attorneys, legal representatives and Affiliates, are the sole and
exclusive owners of such claims.
(d) The release contained in this Section 5.1
shall also be deemed to be a covenant not to xxx. Any breach of this covenant
not to xxx shall entitle the party sued for anything released to recovery of its
attorney fees and expenses incurred in defending such suit.
(e) It is the intention of the DBSI Parties that
this Section 5.1 shall be effective as a full and final accord and satisfaction
and release of each and every matter released under this Section 5.1. In
furtherance of this intention, the DBSI Parties acknowledges that they are
familiar with this intention and with section 1542 of the Civil Code of the
State of California ("Section 1542"), which provides as follows:
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A general release does not extend to claims which the
creditor does not know or suspect to exist in his
favor at the time of executing the release, which if
known by him must have materially affected his
settlement with the debtor.
The DBSI Parties hereby waive and relinquish every right and benefit which they
have or may have under Section 1542 of the Civil Code of the State of
California, as well as any other statutes or common law principles of similar
effect, to the full extent that it may lawfully waive such rights and benefits
pertaining to the subject matter of this Agreement. Nothing in this Section 5.1
shall be construed to limit the scope or intent of Section 6.3 below or as an
acknowledgment or agreement by the Parties that section 1542, or any other
California statutory or common law, is controlling in any manner whatsoever with
respect to the relationship between the Parties, the same being expressly denied
by the Parties.
5.2 Release by EchoStar.
(a) Regardless of whether or not the sale of the
Shares is ultimately consummated, EchoStar and its Affiliates, for themselves,
their predecessors, successors, insurers, assigns, heirs, executors,
administrators, agents, officers, directors, employees, shareholders, members,
attorneys, legal representatives and Affiliates, hereby absolutely and forever
release, forgive, remise, and discharge the DBSI Parties and their Affiliates,
and their predecessors, successors, insurers, assigns, heirs, executors,
administrators, agents, officers, directors) employees, shareholders, attorneys,
legal representatives and Affiliates, of and from any and all claims, demands,
damages, debts, obligations, liabilities, accounts, costs, expenses, liens,
actions, causes of action, and suits in equity, of any kind or nature
whatsoever, whether now known or unknown, patent or latent, suspected or
unsuspected, which they now have, own or hold, or at any time heretofore ever
had owned or held, based on any contract, tort, lien, liability, matter, fact,
cause, thing, injury, act or omission whatsoever, whether or not in any way
relating or pertaining to the E-Sat system; provided, however, that such release
will not abrogate or otherwise effect the indemnification obligations of the
DBSI Parties provided pursuant to Section 5.3 below.
(b) Nothing contained in this Agreement shall be
considered an admission of liability by or against the DBSI Parties or any of
their Affiliates, or any of their predecessors, successors, insurers, assigns,
heirs, executors, administrators, agents, officers, directors, employees,
shareholders, attorneys, legal representatives or Affiliates, any such liability
being expressly denied.
(c) EchoStar and its Affiliates, for themselves,
their predecessors, successors, insurers, assigns, heirs, executors,
administrators, agents,
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officers, directors, employees, shareholders, members,
attorneys, legal representatives and Affiliates, hereby represent and warrant
that they have not assigned any portion of any claim being released in this
Section 5.2 to any other person or entity, and that EchoStar and its Affiliates,
and their predecessors, successors, insurers, assigns, heirs, executors)
administrators, agents, officers, directors, employees) shareholders, members,
attorneys, legal representatives and Affiliates, are the sole and exclusive
owners of such claims.
(d) The release contained in this Section 5.2
shall also be deemed to be a covenant not to xxx. Any breach of this covenant
not to xxx shall entitle the party sued for anything released to recovery of its
attorney fees and expenses incurred in defending such suit.
(e) It is the intention of EchoStar that this
Section 5.2 shall be effective as a full and final accord and satisfaction and
release of each and every matter released under this Section 5.2. In furtherance
of this intention, EchoStar acknowledges that it is familiar with this intention
and with section 1542 of the Civil Code of the State of California ("section
1542"), which provides as follows:
A general release does not extend to claims which the
creditor does not know or suspect to exist in his
favor at the time of executing the release, which if
known by him must have materially affected his
settlement with the debtor.
EchoStar hereby waives and relinquishes every right and benefit which it has or
may have under Section 1542 of the Civil Code of the State of California, as
well as any other statutes or common law principles of similar effect, to the
full extent that it may lawfully waive such rights and benefits pertaining to
the subject matter of this Agreement. Nothing in this Section 5.2 shall be
construed to limit the scope or intent of Section 6.3 below or as an
acknowledgment or agreement by the Parties that section 1542, or any other
California statutory or common law, is controlling in any manner whatsoever with
respect to the relationship between the Parties, the same being expressly denied
by the Parties.
The DBSI Parties hereby agree to indemnify, pursuant to Section 5.3 below,
EchoStar and its Affiliates against any commitments, duties, obligations or
liabilities that currently exist and may arise in the future as a direct or
indirect result of past or future activities of the DBSI Parties.
5.3 Indemnification. Regardless of whether or not the sale of the
Shares is ultimately consummated, the DBSI Parties and their successors and
permitted assigns
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(the "Newstar Parties") hereby jointly and severally indemnify, defend and hold
EchoStar and its Affiliates including without limitation E-Sat), and its and its
Affiliates' respective officers, directors, employees, agents and shareholders,
and their and their Affiliates' respective assigns, heirs, predecessors,
successors, legal representatives and insurers (the "EchoStar Indemnitees")
harmless from and against, any and all costs, losses, liabilities, damages,
lawsuits, judgments, claims, actions, penalties, fines and expenses (including,
without limitation, interest, penalties, reasonable attorneys' fees and
all monies paid in the investigation, defense or settlement of any or all of the
foregoing), that arise out of, or are incurred in connection with: (i) the
performance or failure of performance of any of the Newstar Parties or their
predecessors, successors, insurers, assigns, heirs, executors, administrators,
agents, officers, directors, employees, shareholders, members, attorneys, and
legal representatives (together "Any Newstar Parties") under this Agreement and
any direct or indirect results thereof, (ii) the lawful or unlawful acts,
misrepresentations of fact, unauthorized acts or omissions of Any Newstar
Parties (whether or not such acts are within the scope of employment of such
employees or agents); (iii) the breach or default of any duty, obligation,
covenant, representation or warranty herein by Any Newstar Parties; (iv) all
purchases, contracts, debts and/or obligations made by Any Newstar Parties'; (v)
the failure to comply with, or any actual or alleged violation of, any
applicable laws, statute, ordinance, governmental administrative order, rule or
regulation by Any Newstar Parties; (vi) the failure of Any Newstar Party to
comply with any provision of this Agreement; (vii) any claim brought by an
employee or agent of Any Newstar Party for compensation and/or damages arising
out of the expiration or termination of this Agreement; or(viii) any and all
liability arising from or relating to the development and/or operation of the
E-SAT System prior to, upon, or following the date first written above. Any
amounts owing to the E-SAT Indemnitees from the Newstar Parties under this
Section 5.3 shall be due and payable within ten days after the Newstar Parties'
receipt of the relevant invoice. The provisions of this Section 5.3 shall
survive expiration or termination of this Agreement indefinitely.
Notwithstanding the above, no claim for indemnification shall be based solely on
actions following purchase of the Shares taken in strict compliance with
approvals specifically provided by EchoStar in accordance with the Significant
Corporate Actions referenced in Section 4.7 above.
5.4 REGARDLESS OF WHETHER OR NOT THE SALE OF THE SHARES IS ULTIMATELY
CONSUMMATED, IN NO EVENT SHALL ANY PARTY OR ITS AFFILIATES BE LIABLE TO ANY
OTHER PARTY OR ITS AFFILIATES FOR ANY EXEMPLARY, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES TO THE DBSI PARTIES (INCLUDING WITHOUT LIMITATION, ANY
PAYMENT FOR LOST BUSINESS, FUTURE PROFITS, LOSS OF GOODWILL, REIMBURSEMENT FOR
EXPENDITURES OR INVESTMENTS MADE OR COMMITMENTS ENTERED INTO, CREATION OF
CLIENTELE, ADVERTISING COSTS, TERMINATION OF EMPLOYEES OR EMPLOYEES SALARIES,
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OVERHEAD OR FACILITIES INCURRED OR ACQUIRED BASED UPON THE BUSINESS DERIVED OR
ANTICIPATED UNDER THIS AGREEMENT), WHETHER FORESEEABLE OR NOT, FOR ANY CAUSE
WHATSOEVER, OTHER THAN GROSS NEGLIGENCE OR WILFUL MISCONDUCT; AND PROVIDED THIS
CLAUSE SHALL NOT BE CONSTRUED TO LIMIT IN ANY MANNER THE INDEMNIFICATION
OBLIGATIONS OF THE DBSI PARTIES PROVIDED PURSUANT TO SECTION 5.3 ABOVE. THE
PROVISIONS OF THIS SECTION SHALL SURVIVE EXPIRATION OR TERMINATION OF THIS
AGREEMENT INDEFINITELY.
6. MISCELLANEOUS
6.1 Waiver. The failure or delay of any party to exercise or
enforce any right or remedy hereunder or to insist upon strict performance of
any provision of this Agreement shall not be construed as a waiver of such right
or remedy or any subsequent breach or default of the same or similar nature. The
delay or failure of either Party to give notice of, or to terminate this
Agreement for, breach or default shall not be deemed to be a waiver of the right
to do so for that or any subsequent breach or default or for the persistence in
a breach or default of a continuing nature. All rights and remedies reserved to
either party shall be cumulative and shall not be in limitation of any other
right or remedy which such party may have at law or in equity.
6.2 Audit. EchoStar shall have the right, at its sole cost and
expense, to inspect and audit, with reasonable frequency and upon reasonable
prior written notice to the DBSI Parties, the books and records of the DBSI
Parties relating to this Agreement for the purpose of determining the DBSI
Parties compliance with their duties and obligations under this Agreement.
6.3 Successor Interests. This Agreement is binding upon the
heirs, legal representatives, successors and permitted assigns of the DBSI
Parties and EchoStar. EchoStar may assign this Agreement in whole or m part
(including without limitation the assignment of any of its rights to payments
hereunder in whole or in part or of its rights to (or with respect to) EchoStar
Capacity hereunder in whole or in part) at any time without the consent of the
DBSI Parties. This Agreement and any of the DBSI Parties rights and obligations
hereunder shall not be assigned or otherwise transferred by the DBSI Parties, in
whole or in part, to any person or entity that does not succeed to all of the
right, title and interest in and to all assets of the assignor necessary for
such person or entity to fulfill the obligations of the DBSI Parties under this
Agreement, and which does not specifically agree to assume and fulfill all such
obligations. No such assignment shall relieve the DBSI Parties of their
obligations under this Agreement. This section shall not be construed as
obligating an assignee to assume the Board seat, super majority voting or
anti-dilution provisions of this Agreement, except with respect to transfers of
the stock or assets of E-Sat.
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6.4 Governing Law.
6.4.1 The relationship between the Parties including all disputes and
claims, whether arising in contract, tort, or under statute, shall be governed
by and construed in accordance with the laws of the State of Colorado without
giving any effect to its conflict of law provisions. All Parties hereto for
themselves, their successors and assigns
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warrant and represent that they have had the advice of the counsel of their
choosing and that they have been informed of and understand the rights and
obligations contained within this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting Party shall not be employed in the interpretation of this Agreement or
any amendments or Exhibits hereto.
6.4.2 Any and all disputes arising out of, or in connection with, the
interpretation, performance or the nonperformance of this Agreement or any and
all disputes arising out of, or in connection with, transactions in any way
related to this Agreement and/or the relationship between the Parties (including
but not limited to the termination of this Agreement or the relationship and
each Party's rights thereunder or disputes under rights granted pursuant to
statutes or common law, including those in the state in which a particular Party
is located) shall be litigated solely and exclusively before the United States
District Court for the District of Colorado. The Parties consent to the in
personam jurisdiction of said court for the purposes of any such litigation, and
waive, fully and completely, any right to dismiss and/or transfer any action
pursuant to 28 U.S.C.S. 1404 or 1406 (or any successor statute). In the event
the United States District Court for the District of Colorado does not have
subject matter jurisdiction of said matter, then such matter shall be litigated
solely and exclusively before the appropriate state court of competent
jurisdiction located in Arapahoe County, State of Colorado.
6.5 Severability. The parties agree that each provision of
this Agreement shall be construed as separable and divisible from every other
provision and that the enforceability of any one provision shall not limit the
enforceability, in whole or in part, of any other provision hereof. In the event
that a court of competent jurisdiction determines that any term or provision
herein, or the application thereof to any person, entity, or circumstance, shall
to any extent be invalid or unenforceable, the remaining terms and provisions of
this Agreement shall not be affected thereby, and shall be interpreted as if the
invalid term or provision were not a part hereof.
6.6 Entire Agreement. This Agreement sets forth the entire,
final and complete understanding between the parties hereto relevant to the
subject matter of this Agreement, and it supersedes and replaces all prior and
contemporaneous understandings, representations and agreements, written, oral,
and implied, relevant to the subject matter of this Agreement. Except as
expressly provided by this Agreement, no waiver or modification of any of the
terms or conditions of this Agreement shall be effective unless in writing and
signed by both parties.
6.7 Survival. Any provision of this Agreement which logically
would be expected to survive termination or aspiration, shall survive for a
reasonable time period under the circumstances) whether or not specifically
provided in this Agreement.
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6.8 Compliance with Law. The parties dial) comply with, and
agree that this Agreement is subject to, all applicable federal, state, and
local laws, rules and regulations, and all amendments thereto, now enacted or
hereafter promulgated in force during the term of this Agreement.
6.9 Force Majeure. Notwithstanding anything to the contrary in
this Agreement, neither party shall be liable to the other for failure to
fulfill its obligations hereunder if such failure is caused by or arises out of
an act of force majeure including acts of God, war, riot, natural disaster, or
any other reason beyond the reasonable control of the party whose performance is
prevented during the period of such occurrence.
6.10 Remedies Cumulative. It is agreed that the rights and
remedies herein provided in case of default or breach by any party to this
Agreement are cumulative and shall not affect in any manner any other remedies
that any other party may have by reason of such default or breach. The exercise
of any right or remedy herein provided shall be without prejudice to the right
to exercise any other right or remedy provided herein, at law, or in equity.
6.11 Notice. Any notice to be given hereunder shall be in
writing and shall be sent by facsimile transmission, or by first class certified
mail, postage prepaid, or by overnight courier service, charges prepaid, to the
party notified, addressed to such party at the following address, or sent by
facsimile to the following tax number, or such other address or fax number as
such party may have substituted by written notice to the other parties. The
sending of such notice with confirmation of receipt thereof (in the case of
facsimile transmission) or receipt of such notice (in the case of delivery by
mail or by overnight courier service) shall constitute the giving thereof:
If to DBSI: DBS Industries, Inc.
000 Xxxxxxxxx Xxxxxxx, Xxxxx 000X
Xxxx Xxxxxx, Xxxxxxxxxx 00000
ATTN: Xxxx X. Xxxxxxxx
Fax No.: (000) 000-0000
With copies to: Xxxxxx Eng Linn & Xxxxxxxx
000 Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
ATTN: Xxxxx X. Xxxxxx, Esq.
Fax No.: (000)000-0000
If to EchoStar: EchoStar DBS Corporation
0000 X. Xxxxx Xx Xxxxx
00
Xxxxxxxxx, Xxxxxxxx 00000
ATTN: Xxxxx X. Xxxxxxxxx
Fax No.: (000) 000-0000
6.12 Counterparts and Signatures. This Agreement may be
executed in one or more counterparts and each counterpart shall be deemed to be
an original hereof. The signature pages of each counterpart may be detached from
such counterpart and attached to a single document which shall for all purposes
be treated as an original. The Parties further agree that signatures transmitted
by facsimile or other electronic means shall have equal dignity with original
signatures.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers or representatives as of the date first
-written above.
ECHOSTAR DBS CORPORATION
By: /s/ XXXXX X. XXXXXXXXX
Xxxxx X. Xxxxxxxxx
Senior Vice President and General Counsel
DBS INDUSTRIES, INC.
By: /s/ XXXX X. XXXXXXXX
Xxxx X. Xxxxxxxx
Title:
NEWSTAR LIMITED
By: /s/ XXXX X. XXXXXXXX
Xxxx X. Xxxxxxxx
Title:
E-SAT, INC.
By: /s/ XXXX X. XXXXXXXX
Xxxx X. Xxxxxxxx on behalf of DBS Industries, Inc., a shareholder, and as an
Executive Officer of E-Sat, Inc.
By: /s/ XXXXX X. XXXXXXXXX
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Xxxxx X. Xxxxxxxxx on behalf of EchoStar DBS Corporation, a shareholder, and as
an Executive Officer of E-Sat, Inc.
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